The name of the author is the first to go followed obediently by the title, the plot, the heartbreaking conclusion, the entire novel which suddenly becomes one you have never read, never even heard of,

as if, one by one, the memories you used to harbor decided to retire to the southern hemisphere of the brain, to a little fishing village where there are no phones.

As a poet Billy Collins is incomparable. But his “Forgetfulness” is not describing typical Alzheimer’s Disease. He is describing the common age-related slowdown in speed of recall, and the (extremely frustrating) loss of individual names, identifiers or even words. This is not dementia.

Of course, the poet does not claim it is dementia. The title is “Forgetfulness,” after all — and that is exactly what he describes. It is the popular psyche, if you will, that conflates forgetfulness with early dementia. They are different.

As a favorite resource tells us, there is a quantitative difference between forgetfulness and dementia. A person with normal age-related memory changes might forget a part of an experience; the person with Alzheimer’s Disease may forget the entire experience. While you might later remember what you forgot, the person with dementia is unlikely to recover the memory later. Do you leave a blizzard of notes to help you remember things? The demented patient is likely unable to use note-taking to assist with memory.

How can you tell if you are experiencing “normal” (whatever that means) forgetfulness as a part of the aging process, or demonstrating early symptoms of dementia? One reassuring rule of thumb: if you’re asking the question, it indicates the former is more likely. Dementia often interferes with both memory and reasoning, and your inquiry suggests that you are thinking through the possibilities and ramifications.

What if you are trying to get a sense about a family member or friend? Here are some indicators that memory problems might be early dementia:

Misplacing keys or other items might be normal aging. Putting them in the refrigerator, or in an unlikely hiding place, might indicate the possibility of dementia.

Putting on too many (or too few) clothes for the season — particularly if clothes are layered inappropriately — might suggest a problem.

Forgetting an appointment is not uncommon. Showing up a week early, or at the wrong place, is more problematic.

Inability to “get” sarcasm is a common problem in early dementia. Some people don’t like sarcasm in others — but that’s not what we’re talking about here. Demented people may also miss cues that someone they are talking with might be lying.

Falls are several times more likely among those with dementia. A recent history of increasing falls might raise the possibility of early dementia.

At a seminar for lawyers and accountants last week, our ears pricked up when we heard a speaker say: “remember, something like 60% of your clients over 75 suffer from Alzheimer’s Disease.” (OK — that might not be an exact quotation, but that was the sense of the observation.) That made us sit up straight, and dive into an online search. That number seemed high — and it was.

Not to take anything away from the problem of dementia among elderly clients. It is a common concern, and it appears far, far too often. Lawyers’ and accountants’ clients too often wait to take care of things they should deal with until they are no longer able to make complex decisions. Elderly clients are too often frail — both mentally and physically — and are susceptible to financial exploitation or physical abuse. Very few of the educated, committed professionals in the room were qualified to recognize, much less diagnose, dementia. So the problem is very real, and more emphasis should be given to the prevalence of dementia among the elderly.

At the same time, there is a danger in the opposite approach, too. We see plenty of bright, capable, engaged seniors whose family have decided that they are too old, too frail, even too demented to make their own decisions. We constantly struggle against marginalization, sequestration, even infantilization of seniors. So we think it’s important to keep in mind that most seniors are NOT demented, even though a significant percentage do have problems with memory and reasoning. We also think it’s important to note that even a diagnosis of dementia does not mean the patient (our client) can not make any decisions.

We vividly recall an older couple, married for fifty years, who came to see us for a review and possible revision of their estate plan. They hadn’t been in the office for about five years, and we were delighted to catch up with them. Both husband and wife were engaged in our conversation, both laughed easily, and both remembered all the important details of their lives necessary to handling revision of their estate plans. When we got down to details, the wife could explain why they had come to the office, what changes they were considering, and what effect those changes might have on her (and them).

As we finished up our discussion, the husband quietly pushed a pill bottle over for our inspection. It was for a well-known drug usually prescribed to early dementia patients. It took a few moments to figure out how to address the implied statement, but finally we asked: are you showing us this because you worry that your wife is not able to make changes in her estate plan? Because if so, you should have no concerns. She clearly understands the discussion, and it is apparent that she not only agrees with your proposed changes, but even initiates discussion and explains her views. All that was said, of course, to both clients, and without marginalizing the early-dementia patient’s involvement.

It is critically important — for their sakes and for our collective humanity — that demented individuals be allowed and encouraged to participate in their own planning. It is dangerous to spend too much energy on the likelihood of dementia, or the typical stages of the condition. But it is also important for professionals to know what is out there, and what to watch for.

So what is the actual incidence of dementia in the older population? The best resource is the excellent annual report of the Alzheimer’s Association — the leading American organization dealing with this debilitating disease. You can find links to the current annual report on the Alzheimer’s Association website — as we write this, the 2013 report is current. You will find the report interesting reading, but we are prepared to synopsize some of its findings for you:

The incidence of dementia is hard to pin down. Especially in the early stages, as many as half of demented individuals do not get diagnosed at all. Extrapolating from a Chicago study and analysis of national data, the Alzheimer’s Association estimates that about 14% of individuals over age 71 suffer from dementia. That’s not quite the same age as the one used by the speaker who caught our attention, but it does indicate that something like 1 in 7 of clients over 70 should be expected to have dementia.

Even among clients over 85, the Alzheimer’s Association calculates that the incidence of dementia is only about 1 in 3. Going the other direction, it is about 1 in 9 for those aged 65 and older.

Obviously, there is a very strong correlation between age and the dementia diagnosis. Remember that the figures described here (1 in 9 of those over 65, for example) include potential clients in their late 90s, with a much higher incidence. So maybe it is more useful to look at the question from the other direction: if you are 75 this year, for example, you might want to know what the odds are that you will be diagnosed with dementia before your death. The answer: well, it depends on whether you are a man or a woman — there is about a 10% chance if you are a man, and an 18.5% chance if you are a woman.

Alzheimer’s Disease is the most common condition leading to dementia among the elderly, but it is not the only one. Vascular disease (often described as a series of small strokes) is another leading cause, and there are others. One distinguishing characteristic: Alzheimer’s Disease may first appear as memory loss (especially short-term memory), while vascular dementia may first appear as impairment of judgment or the inability to make plans.

An Alzheimer’s diagnosis also indicates a shortened life expectancy. This is complicated to explain, but here’s what the report notes about one representative age group: “Among people age 70, 61 percent of those with Alzheimer’s are expected to die before age 80 compared with 30 percent of people without Alzheimer’s.” Presumably, similar statistical changes would appear for other age groups.

The report is fascinating, and now we think every professional dealing with seniors should look it over. We’ll be passing it around our office and discussing its meaning for our clients and our practice. But we hope to keep this key point in mind: it is not statistics or probabilities that should drive our representation, but individual people.

NOVEMBER 7, 2011 VOLUME 18 NUMBER 38
A woman has been diagnosed as suffering from dementia of the Alzheimer’s type, and she resides in an assisted living facility. She has short-term memory loss, is frequently forgetful and has difficulty with tasks like playing cards and operating her television set. Can she sign a new will?

That is the legal question posed by Clara Marsh’s will, which she wrote out in longhand and signed in 2006. Ms. Marsh died two years later, and her son and daughter ended up in a legal battle over whether the will was valid.

To be more precise, Ms. Marsh’s will actually presents two related but independent legal questions. First: was she competent to sign the will on the day she did? Second: if she was competent, did her son and daughter-in-law exert undue influence on her in connection with the new will?

A brief background is in order. Ms. Marsh had a 1996 will that left everything equally to her two children. When she moved into a condominium in 2003, she wrote to the children telling them that she intended to leave her new home to her son Richard. He had helped her with the purchase, and she explained to the children that she had placed her new home in joint tenancy (with right of survivorship) with Richard. She did not, however, sign a new will at that time.

In 2006 Ms. Marsh moved to an assisted living facility, and the condominium was sold. The proceeds from that sale then became a bone of contention between her son Richard and her daughter Elaine Grayson. Richard thought the proceeds should be put into an account in his and his mother’s names as joint tenants; Elaine insisted that the proceeds be placed in an account in Ms. Marsh’s name alone.

As the two siblings (and their respective spouses) debated how to handle the sale proceeds, Elaine’s husband John filed a guardianship petition. He alleged that Ms. Marsh had Alzheimer’s disease and dementia. Richard opposed the guardianship petition, and the relationship between the two couples deteriorated.

A month after the guardianship was filed Ms. Marsh prepared a one-paragraph will in her own handwriting. It said:

Because of all the legal problems Elaine and John are causing, I am afraid my final wishes will be ignored. To prevent this from happening, this is my new will: I leave everything to my son Richard and his wife Sam. I love you all very much.

This new will was witnessed by Ms. Marsh’s priest and the church secretary. She apparently did show it to Richard shortly after she signed it (he says he told her to “hide this someplace” and think it over), but she did not share it with Elaine or her husband John.

After Ms. Marsh’s death in 2008, Richard filed the handwritten will with the Ohio probate court. Elaine objected, arguing that (a) Ms. Marsh had been incompetent at the time of the will’s signing, and (b) Richard and his wife had exerted undue influence over Ms. Marsh to get her to disinherit Elaine. The probate court granted summary judgment to Richard, thereby dismissing the objections raised by Elaine.

The Ohio Court of Appeals agreed with the probate court on the first issue, but sent the dispute back to probate court for further proceedings regarding the undue influence count. Despite a diagnosis of dementia, and despite forgetfulness and confusion, the appellate court agreed that Ms. Marsh appeared to understand the things needed to make a valid will. She knew who her children (and in-laws) were, and even though she may not have known the precise nature of her assets she did understand what was involved with her estate. She knew she was making a will, and the effect of doing so. Summary judgment was appropriate on the question of her legal capacity to sign a will. Despite her limitations, despite her diagnosis and despite her living situation, she was able to make her new will.

But it still might be possible to show that she was subjected to undue influence, and the appellate court took pains to distinguish the two concepts. Undue influence, the court noted, is not the same as general influence — even “strong and controlling” influence. To be “undue,” influence must be so pervasive and effective as to result in the document reflecting the wishes of the influencer and not those of the signer. That is a high barrier for a will challenger to cross, but Elaine should be given a chance to introduce evidence to support her claim, ruled the Court of Appeals. In Re Estate of Marsh, October 28, 2011.

Other than the obvious (“don’t exercise undue influence over seniors”), what lessons can we take from Ms. Marsh’s story to guide our actions when working with seniors like her? We might submit a couple for your consideration:

Don’t forget that, while you and other family members dispute how best to handle the senior’s finances (or life), he or she may have some strong opinions and may actually feel affected by your decisions, arguments and tactics.

“Winning” may not be as important in family disputes as figuring out a way to get along. The cost of this particular dispute: thousands of dollars in legal fees, irreparable damage to family relationships and (and not least) psychic injury to the individual everyone was trying to protect.

Family disputes are sometimes about the best interests of a vulnerable family member, sometimes about dollars, sometimes about pride, and sometimes about control. In our professional experience, those last are often the most difficult ones to resolve.

FEBRUARY 28, 2011 VOLUME 18 NUMBER 7
The issue arises with some regularity. A married couple, perhaps in their second marriage. Adult children. One spouse becomes ill — often, but not always, demented. The other spouse, unable to cope, turns the care of the ill spouse over to one of the children. That child figures out that, financially, at least, the ill spouse would be better off divorced. That way, control of the ill spouse’s share of the couple’s property could be managed for the sole benefit of the ill spouse, and care could be assured. But can the guardian file a divorce petition?

In most states, the answer is not clear. A handful of states have explicitly addressed the question, with mixed results. The latest state court to face the issue is the Supreme Court of Vermont.

Catherine and Philip Samis had been married for almost a quarter century when Mrs. Samis began to show signs of dementia. Mr. Samis, a Canadian citizen, withdrew across the border to one of the couple’s homes, taking most of their personal effects with him. Mrs. Samis’ son from a former marriage stepped in, secured a guardianship of his mother’s person and estate (in Arizona we would call it a guardianship and conservatorship), and began overseeing her care.

Mrs. Samis is a U.S. citizen, and would be entitled to Social Security benefits under her first (now deceased) husband’s account if she were not married. Since Mr. Samis is a Canadian citizen, there are no Social Security benefits payable to her while she remains married. Her son decided it would be in her best interest — financially, at least — to get divorced, and to divide the couple’s property so that he could control how her share was spent.

Once a divorce proceeding was filed, however, Mr. Samis objected. He argued that Vermont law did not permit a guardian to petition for divorce on behalf of a ward. As with most states, the Vermont statutes were silent on the subject; there was a single reference in Vermont court rules to guardians signing divorce petitions, but no indication how the Vermont legislature felt about the possibility.

After the divorce court denied Mr. Samis’ objection, granted the divorce, divided the couple’s property and ordered Mr. Samis to make a lump-sum support payment of about $300,000, he appealed. The Vermont Supreme Court was thus faced with determining whether Mrs. Samis’ guardian had the authority to initiate the proceeding in the first place.

Ruling that a guardian’s powers are limited to those spelled out in the guardianship statutes, the state’s high court reversed the divorce court’s orders. The justices considered the holdings in a handful of states, including Arizona, and concluded that most do not permit guardians to file divorces.

The ability to file for divorce is intensely personal, said the justices. The only Vermont precedent that addressed the issue at all, an 1877 Supreme Court case, agreed; in that case, a person who had been placed under a guardianship of the estate (what would be a conservatorship in Arizona) was permitted to file his own divorce proceeding despite the guardianship. Now it is clear that in Vermont, at least, the guardian can not file the divorce petition for a ward who has become incompetent.

What about the other states? The Vermont decision cites several that agree with its holding, including appellate courts in Kentucky, New York and South Carolina. Courts in Massachusetts and New Hampshire have allowed guardians to petition for divorce, but have done so based on specific state statutes. According to the Vermont justices, only two states, Arizona and Washington, have permitted guardians to file for divorce even without the support of statutes clearly authorizing the action. Samis v. Samis, February 18, 2011.

As the Vermont Supreme Court notes, Arizona is one of the minority of states clearly permitting the guardian to file a divorce proceeding, even without express statutory authority. That is the holding of the Arizona Court of Appeals in the 1993 case of Ruvalcaba by Stubblefield v. Ruvalcaba, which we reported on at the time (yes, Virginia, there was an Elder Law Issues in 1993/1994), and which we have since described in more detail for our readers.

June Miller once told the trust officer at her bank that she loved her son Warren Miller but that she didn’t like him very much. That might have been her motivation for making a number of changes to her estate plan in the last few years of her life. After she died her son sued the bank for letting her make those changes.

When Ms. Miller’s husband (and Warren Miller’s father) died in 1995 he left a trust for Ms. Miller’s benefit. When she died, the trust was to go to their only child, Warren Miller. Ms. Miller had significant assets of her own, and she also established a trust with Key Bank in Ohio. At one point her trust gave Warren the right to approve all investment decisions and trust amendments in the event that Ms. Miller became incapacitated. In 2001, without telling Warren, she changed that provision and deleted his power to review trust activities.

At about the same time Ms. Miller exercised her power to withdraw some of her husband’s trust assets, saying that she intended to benefit her grandchildren at her son’s expense by shifting them to her estate. She also made a series of transfers to a caretaker and family, helping them to buy a home and making outright gifts of about $120,000.

Even as those changes were being undertaken, Ms. Miller was first diagnosed as suffering from mild dementia. When she died in 2002, her son Warren sued the bank, the caretaker and her family members.

Mr. Miller argued that the bank had a duty to watch out for Ms. Miller’s finances and to prevent exploitation. He claimed that the caretaker had in fact exploited his mother. He also insisted that the changes to her trust were made at a time when she was already demented, and that the bank was required to let him review those changes before accepting them.

A trial judge dismissed Mr. Miller’s claims against the bank and the caretaker, and the Ohio Court of Appeals agreed. Whatever duty the bank owed was to Ms. Miller and not to her son, said the appellate judges. Furthermore, the mere diagnosis of dementia was not enough to establish that she could not amend her trust, or make gifts to her caretaker. In fact, the gifts were made not from her trust, but from an account which the bank did not control. Mr. Miller had failed to carry his burden of proof to show that the bank had made any mistake, and the case was properly dismissed.

The appellate court decision also approved dismissal of the claims against Ms. Miller’s caretaker and family members. The judges specifically noted that Mr. Miller didn’t seem to have had any questions about his mother’s competence when she paid off his mortgage, arranged a monthly allowance for him and made other large gifts to him. Miller v. KeyBank National Association, April 6, 2006.

Is one who has been determined legally incapacitated and in need of a guardian able to revisit the court’s determination or challenge her guardian’s actions? Yes, wards may request the restoration of capacity and/or challenge the fitness of the guardian. In at least one state, however, wards are not entitled to legal representation unless a proceeding has been brought to terminate a guardianship or remove a guardian. Guardianship of Lon Hocker, July 10, 2003.

In August 1999, Priscilla Claman petitioned the Barnstable Division of the Family and Probate Court to be appointed permanent guardian of her 88 year-old father, Lon Hocker, Jr., who contested the need for a guardian. The court appointed attorney Kathy Pett Ryman to represent Mr. Hocker. After a trial the court found that Mr. Hocker suffered from multi-infarct dementia and was unable to care for himself by reason of mental illness. Ms. Claman was appointed to serve as guardian. The court admonished family members not to interfere with the guardian’s ability to implement a treatment plan for Mr. Hocker.

Over a year later the court vacated Ms. Ryman’s appointment as Mr. Hocker’s attorney. The next day, Ms. Ryman entered a notice of appearance on his behalf with no other pleading—she did not seek to remove the guardian or end the guardianship. Mr. Hocker’s guardian moved to strike the notice of appearance.

Ms. Ryman and the ward’s son opposed the guardian’s motion. After a hearing the court made note of Mr. Hocker’s diminished level of cognitive function and granted the guardian’s motion to prohibit Mr. Hocker’s attorney from appearing on his behalf. The judge, who seemed to think that the ward’s son was just trying to keep tabs on his sister, noted that any concerns about the guardian’s fitness could be addressed in an action to remove her pursuant to state statute. Ms. Ryman and the ward’s son appealed this ruling.

The Massachusetts high Court ruled that apart from an adversarial action “due process does not require that a ward be able to consult with counsel about his guardianship.” The Court emphasized, however, that the ward and his family members “remain free to challenge Claman’s fitness as guardian or the ward’s continued need for a permanent guardian …” Left unanswered was how he might accomplish that task without the aid of counsel.

In Arizona attorneys for wards (especially those with mental health issues) often have extended appointments. It is unlikely that a lawyer’s attempt to appear for even an incapacitated ward would be rejected.

An individual must be mentally competent before making a valid will, signing a contract or executing almost any legal document. Confusion often arises because the level of competence required may vary depending on what sort of document is being signed.

Take the case of Agnes Marquis of Bangor, Maine. In November, 2000, she met with her insurance agent for over an hour, discussed her plans with him, and then signed a change of beneficiary form naming nephew Daniel Pelletier to receive several annuity contracts. She told the insurance agent that Mr. Pelletier was the only relative who visited her on holidays, and he helped her run errands.

At about the same time Ms. Marquis was having other problems, according to witnesses. She believed that someone was talking to her through her television, that her dog had nursed her back to health when she fell ill, that unidentified Quakers were going to break into her house at night, and that she was going to marry Jesus. Ms. Marquis visited her doctor a week before and three weeks after she changed the annuity beneficiaries, and both times she was diagnosed as suffering from dementia.

Demented, delusional individuals can still sign new wills and change beneficiaries if they have the necessary level of mental capacity. The question in Ms. Marquis’ case was which level of capacity she needed.

Mr. Pelletier argued that the proper standard was “testamentary” capacity—the level required to make a change to one’s will. Under that test, Ms. Marquis would only have to know who her relatives were, have a general notion of the nature and extent of her assets, and understand the concept of naming someone to receive property after her death. The administrator of her estate argued, however, that Ms. Marquis required “contractual” capacity—the ability to understand the nature of an annuity contract as if she were entering into a new agreement, rather than simply changing beneficiaries. After a hearing the probate court agreed that contractual capacity was the proper standard, and that Ms. Marquis did not have sufficient capacity to change beneficiaries.

Maine’s Supreme Judicial Court upheld the trial judge’s decision. Though changing beneficiaries in an annuity or life insurance contract resembles making a will, it is really a revision of a contract and requires the higher level of capacity. The Court also ruled that there was sufficient evidence that Ms. Marquis lacked the necessary capacity, and ordered that the annuity proceeds be paid to her estate for distribution to the charities named in her will. Estate of Marquis, May 12, 2003.

After Paul Carter died at the Imperial of Hazel Crest Nursing Home in Illinois, his widow sued both the facility and the doctor in charge of his care. She claimed that after her husband was discharged from a hospital stay back to the nursing home, his physician failed to prescribe the insulin that Mr. Carter, a diabetic, needed to survive. She settled her lawsuit against the nursing home for $125,000; a jury awarded her $1.3 million against the attending physician.

In a sad irony, Mr. Carter was first admitted to Imperial precisely because his wife believed that it provided better care to bedridden patients than the nursing home and hospital where he had been treated. On his first admission his care was taken over by Dr. Abdol Azaran, the medical director at Imperial.

Mr. Carter had been a diabetic for over forty years, requiring daily injections of insulin. Dr. Azaran entered an order to continue daily insulin; because of Mr. Carter’s dementia, he was unable to participate in that or other treatment decisions.

A few days after his initial admission to Imperial, Mr. Carter was hospitalized for a urinary tract infection. During that stay Dr. Azaran ordered that his daily insulin shots be supplemented with periodic blood glucose checks and, when necessary, injections of a faster-acting insulin.

By the time Mr. Carter was returned to Imperial his daily insulin shots had been abandoned in favor of the regular glucose monitoring. In the course of the readmission, however, Dr. Azaran’s order for fast-acting insulin also got cancelled, so that Mr. Carter received no insulin whatsoever. He also had decubitis ulcers on his tailbone and heel, and he refused to (or could not) eat. Mrs. Carter discovered that the insulin had been stopped when she inquired about his condition.

Dr. Azaran did not return at least three attempts to page him for instructions on Mr. Carter’s care, and he was finally re-hospitalized at the direction of Imperial’s Nursing Director. Doctors at the hospital found that he had suffered a mild heart attack, and treated him for decubitis ulcers, dehydration, pneumonia and infection of both his bladder and his decubitis ulcers. Mr. Carter was discharged back to Imperial a month later, and lived another three months at the facility.

The jury awarded $55,000 for actual medical expenses, $385,000 for aggravation of existing medical conditions and $1,060,000 for pain and suffering against Dr. Azaran, and he appealed. The Illinois Court of Appeals upheld the judgment; the evidence supported the jury’s award and it did not “exceed the limits of fair and reasonable compensation.” Dr. Azaran’s novel argument that Mr. Carter “would have paid for a bed to sleep in at the nursing home” did not mean his estate could not recover all the costs of medical care. Carter v. Azaran, July 22, 2002.

Late-life marriages, of course, are usually unions of love—even when entered into by widows and widowers with families from earlier marriages. The strains on family relationships can be severe, but love can conquer all. Sometimes, though, late marriages can be the product of manipulation and overreaching by one of the spouses. While there is little empirical data to indicate any change, it seems increasingly common that mildly (or even severely) demented seniors are drawn into marriages with (often younger) caretakers, opportunists or even, sometimes, well-meaning but self-interested acquaintances. A recent Illinois case explored the aftermath of such a relationship.

John R. Lundahl and Elizabeth Gabel were married in Florida in August, 1988. By 1989, Mr. Lundahl had become so incapacitated that a guardian had been appointed to make both personal and financial decisions for him. His guardian sued to have the marriage annulled, arguing that Mr. Lundahl had actually been incapacitated at the time of the marriage, even though no court order had been entered to that effect.

After a year of negotiations Ms. Gabel agreed that the marriage could be annulled, but on the condition that Mr. Lundahl’s guardian pay her $1,700 per month for the rest of her life. Payments began in July of that year.

After Mr. Lundahl died in June, 2000, the question arose whether his probate estate was liable for continued payments for the rest of Ms. Gabel’s life. She argued that the agreement clearly required lifetime payments, and that it was akin to the property settlement agreement that might have been entered had the couple gotten a divorce. The probate court agreed and ordered that the payments continue.

The Illinois Court of Appeals disagreed. Annulment of the marriage, said the appellate court, was a judicial declaration that the marriage never existed, not that a valid marriage was ended. Since no marriage ever existed the settlement agreement should be judged according to general contract principles rather than the standards applied in divorce cases. Even if marital settlement agreement principles were applied the payments should end, the court decided.

Public policy considerations, said the judges, required that any intention to extend liability after the death of one party to a contract should be clearly expressed in the contract itself. Although this agreement was to continue for the rest of Ms. Gabel’s “natural life,” it was silent about what would happen on the death of Mr. Lundahl, the other party to the agreement. In the absence of clear language, Mr. Lundahl’s estate was not liable, and the payments to Ms. Gable ended on his death. Estate of Lundahl, July 16, 2002.

Two years before Erwin W. Schlueter died in 1997 at age 85, he had completed his estate planning. He had signed a will, a durable power of attorney for financial matters and a durable power of attorney for health care. When his relatives contested the validity of the will, they pointed to the powers of attorney as evidence that Mr. Schlueter knew he was already incompetent to make his own financial decisions.

Mr. Schlueter and his wife Frieda had watched neighbor Chris Bowers grow up, and they were particularly fond of him. In 1994, Mr. Schlueter even named the youngster as alternate agent in his power of attorney, to take effect if Frieda should die before him. Mr. Bowers was only seventeen years old at the time.

There was no doubt that Mr. Schlueter suffered from dementia at the time he executed his powers of attorney and (later) his will. His relatives asserted that the mere fact of the dementia diagnosis should be evidence of incapacity, and that they should be permitted to make the case for invalidating his will to a jury. In addition, they argued, when Mr. Schlueter signed the immediately effective power of attorney he tacitly admitted his own incapacity even before the will was signed.

Mr. Schlueter’s doctor and the witnesses to the will all agreed that he was confused, and that his short-term memory was poor. Mr. Bowers argued that the mere fact of a dementia diagnosis was not enough to get the case before a jury, and that the family had to show more specific evidence of lack of capacity.

Mr. Schlueter’s relatives pointed to the will itself. It identified his mother as his mother-in-law, and vice versa. It also described him as the “testatrix,” which would have made Mr. Schlueter a female. In response, Mr. Bowers submitted the affidavit of the secretary who prepared the wills for the Schlueters; she explained that she had prepared Mrs. Schlueter’s will first, and then switched names to make the identical will for Mr. Schlueter, and that the failure to switch “mother” and “mother-in-law” and to change “testatrix” to “testator” were her mistakes, not Mr. Schlueter’s.

The Wyoming Supreme Court reviewed the affidavits submitted and decided that there was insufficient evidence of incapacity to even submit the matter to a jury. The mistakes in the will, said the court, “demonstrate clerical carelessness rather than incapacity,” and the mere diagnosis of dementia did not preclude a finding that Mr. Schlueter had sufficient capacity to sign his will. Finally, granting a power of attorney, even an immediately effective power, can not be construed as an admission of incapacity. Estate of Schlueter, January 11, 2000.